1. SENATOR, OUSTED THROUGH ELECTION PROTEST, AS A DE FACTO OFFICER; RIGHT TO COMPENSATION, EMOLUMENTS AND ALLOWANCES. — A senator who had been proclaimed and had assumed office, but was later on ousted as a result of an election protest, is a de facto officer during the time he held the office of senator, and is entitled to the compensation, emoluments and allowances which our Constitution provides for the position. This is the policy and the rule that has been followed consistently in this jurisdiction.
2. JUDGMENTS; RES JUDICATA; DAMAGES IN ELECTION PROTEST; ELECTORAL TRIBUNAL, SCOPE OF POWERS OF. — Where the Senate Electoral Tribunal chose to pass sub silentio, or ignored altogether, an important claim for damages in connection with an election protest — a matter incident to the power and authority given to the Tribunal by the Constitution, whose jurisdiction over election cases is ample and unlimited — the clear implication is that it deemed it unjustified. This matter cannot be passed upon in another action for recovery of said damages in accordance with the principle of res judicata.
3. PLEADINGS AND PRACTICE; COMPLAINT, AVERMENT IN, AS A CONCLUSION OF LAW; MOTION TO DISMISS. — The averment in a complaint that "defendant usurped the office of Senator of the Philippines" is a conclusion of law — not a statement of fact - when the particular facts on which the alleged usurpation is predicated are not set forth therein. Such averment cannot be deemed admitted by a motion to dismiss.
Plaintiff seeks to collect from the defendant the aggregate sum of P18,400 as salaries and allowances, and the sum of P35,524.55 as damages, upon the plea that the latter usurped the office of Senator of the Philippines which rightfully belongs to the former from December 30, 1947, to December 27, 1949.
Plaintiff claims that on December 30, 1947, defendant usurped the office of Senator of the Philippines, and from that date until December 1949, he continuously collected the salaries, emoluments and privileges attendant to that office amounting to P18,400; that protest having been filed by plaintiff against defendant, the Senate Electoral Tribunal on December 16, 1949, rendered judgment declaring plaintiff to have been duly elected to the office; and that by reason of such usurpation, plaintiff suffered damages in the amount of P35,524.55 for expenses he incurred in prosecuting the protest.
On February 2, 1950, defendant filed a motion to dismiss alleging, on one hand, that the judgment rendered by the Senate Electoral Tribunal in the protest case is a bar to this action under the principle of res judicata, and, on the other, that said Tribunal denied without any reservation the claim of the plaintiff for expenses incurred in prosecuting the protest.
The issue having been thus joined upon the motion to dismiss, the Court entered on an order dismissing the complaint with costs. From this order plaintiff has appealed.
The averment in the complaint that "defendant usurped the office of Senator of the Philippines" is a conclusion of law, — not a statement of fact, — inasmuch as the particular facts on which the alleged usurpation is predicated are not set forth therein. Hence such averment cannot be deemed admitted by the motion to dismiss (Fressel v. Mariano Uy Chaco & Sons & Co., 34 Phil., 122). Moreover, such averment is negatived by the decision of the Senate Electoral Tribunal in the protest case which says that defendant was one of those proclaimed elected as Senator in the general elections held on November 11, 1947. Defendant, cannot, therefore, be considered a usurper as claimed in the complaint.
With this preliminary statement, let us now proceed to determine the only issue involved in this appeal, to wit, whether defendant, who has been proclaimed, took the oath of office, and discharged the duties of Senator, can be ordered to reimburse the salaries and emoluments he has received during his incumbency to the plaintiff who has been legally declared elected by the Senate Electoral Tribunal.
Plaintiff claims that, as defendant was found by final judgment not to have been entitled to the office of Senator, and, as such, he was during the time he discharged that office a mere de facto officer, he should reimburse to the plaintiff the salaries and emoluments he has received on the following grounds; (1) because the salaries and emoluments follow and are inseparable from legal title to the office and do not depend on whether the duties of the office are discharged or not; and (2) because such a rule tends to curb election frauds and lessens the danger and frequency of usurpation or intrusion into the office. Plaintiff invites the attention of the Court to the annotation appearing in 93 A.L.R. 258, 273 et seq., supplemented in 151 A.L.R. 952, 960, et seq., wherein more than 100 cases are cited in support of the rule.
Defendant, on the other hand, contends that the rule invoked by plaintiff, while sound and plausible, cannot be invoked in the present case, since it runs counter to the principle and rule long observed in this jurisdiction to the effect that one who has been elected to an office, and has been proclaimed by the corresponding authority, has a right to assume the office and discharge its functions notwithstanding the protest filed against his election, and as a necessary consequence he has likewise the right to collect and receive the salaries and emoluments thereunto appertaining as a compensation for the services he has rendered. Defendant avers that plaintiff already attempted to seek the reimbursement of the salaries and emoluments he had received in the protest he has filed against him but failed and the implicit denial of his claim by the Senate Electoral Tribunal constitutes a bar to his right to collect the same salaries and emoluments in the present case.
After a careful consideration of the issue in the light of the law and precedents obtaining in this jurisdiction, we are inclined to uphold the point of view of the defendant. There is no question that the defendant acted as a de facto officer during the time he held the office of Senator. He was one of the candidates of the Liberal Party in the elections of November 11, 1947, and was proclaimed as one of those who had been elected by the Commission on Elections, and thereafter he took the oath of office and immediately entered into the performance of the duties of the position. Having been thus duly proclaimed as Senator and having assumed office as required by law, it cannot be disputed that defendant is entitled to the compensation, emoluments and allowances which our Constitution provides for the position (article VI, section 14). This is as it should be. This is in keeping with the ordinary course of events. This is simple justice. The emolument must go to the person who rendered the service unless the contrary is provided. There is no averment in the complaint that he is linked with any irregularity vitiating his election. This is the policy and the rule that has been followed consistently in this jurisdiction in connection with positions held by persons who had been elected thereto but were later ousted as a result of an election protest. The right of the persons elected to compensation during their incumbency has always been recognized. We cannot recall of any precedent wherein the contrary rule has been upheld.
A case which may be invoked in support of this point of view is Page v. U. S. (127 U. S. 67; 32 Law ed. 65), decided by the Supreme Court of the United States. In that case, one William A. Pirce was declared elected, received a certificate of election, was sworn in and took his seat in the Congress of the United States. His election was contested by Charles H. Page, and as a result the House of Representatives found that Pirce was not duly elected and declared his seat vacant. An election was thereafter held to fill the vacancy and Page was duly elected. Thereupon Page was sworn in and took his seat. Page later sued to recover the salary received by Pirce during his incumbency. The Supreme Court ruled that he was not entitled to it holding that "one whose credentials showed that he was regularly elected a member of Congress, and who was sworn in and took his seat, and served, and drew his salary, was — although his seat was contested, and subsequently he was declared by Congress not to have been elected, and his seat was declared vacant — the predecessor of the person elected to fill the vacancy." This case, though it arose under a special statute, is significant in that it regarded Pirce as the lawful predecessor of Page in the office to which he was later legally elected. Pirce was declared entitled to the salary and emoluments of the office.
We are sympathetic to the rule earnestly advocated by the plaintiff which holds that the salaries and emoluments should follow the legal title to the office and should not depend on whether the duties of the office are discharged or not, knowing that it is predicated on a policy designed to discourage the Commission of frauds and to lessen the danger and frequency of usurpation or intrusion into the office which defeat the will of the people. We are conscious that, if the role is adopted, it would indeed have a wholesome effect in future elections and would serve as a deterring factor in the commission of frauds, violence and terrorism which at times are committed in some sectors of our country to the detriment of public interest. But an examination of the cases relied upon by him, discloses that in some states, like Indiana, New York, Michigan, California, Louisiana, Idaho, Missouri and Washington, the doctrine advocated is premised on express statutory provisions which permit recovery of the damages sustained by reason of usurpation (Mechem, A Treatise on the Law of Public Offices and Officers, pp. 223-224; 93 A. L. R. pp. 284-287), whereas in the rest the ruling is based on common law (Kreitz v. Behrensmeyer, 24 A. L. R. 223-224). Under such predicament, it is indeed hard to see how we can extend here the force and effect of such doctrine as we are urged, knowing well that, as a rule, "neither the English nor the American common law is in force in these Islands, nor are the doctrines derived therefrom binding upon our courts" (U. S. v. Cuna, 12 Phil., 241; Arnedo v. Llorente and Liongson, 18 Phil., 257, 262), while, on the other hand, there is nothing in our statutes which would authorize us to adopt the rule. For us to follow the suggestion of the plaintiff would be to legislate by judicial ruling which is beyond the province of this Court. Nor are we justified to follow a common law principle which runs counter to a precedent long observed in this jurisdiction.
Another reason that may be invoked in opposition to the claim of the plaintiff is the principle of res judicata. It appears that plaintiff had already set up this claim in the protest he filed against the defendant before the Senate Electoral Tribunal, but when the case was decided on the merits the Tribunal passed up this matter sub silentio. In our opinion, this silence may be interpreted as a denial of the relief. This is a matter which can be considered as an incident to the power and authority given to the Electoral Tribunal by our Constitution, whose jurisdiction over election cases is ample and unlimited (Sanidad Et. Al. v. Vera Et. Al., Case No. 1, Senate Electoral Tribunal), and when the Tribunal chose to pass sub silentio, or ignore altogether, this important claim, the clear implication is that it deemed it unjustified. This matter, therefore, cannot now be passed upon in line with the doctrine laid down in the case of Kare v. Locsin, (61 Phil., 541), wherein this Court, among other things, said:jgc:chanrobles.com.ph
"Locsin drew his pay by resolution and authority of the Legislature. The propriety of those payments cannot be questioned on this complaint. We recognize Locsin’s right to receive and to retain the compensation because the Legislature voted it to him in spite of Mr. Kare’s pending contest and claim to that compensation. The Legislature’s determination of Mr. Locsin’s right to compensation necessarily carries the corollary of Mr. Kare’s lack of right to the same compensation. The Legislature might possibly have required reimbursement by Locsin had it been its intention to recognize Mr. Kare’s claim to the same compensation; but not having done so, Locsin’s superior right to this compensation is res judicata for the courts." (Kare v. Locsin, 61 Phil., pp. 541, 546.)
The same consideration may be made with regard to the claim for damages contained in the second cause of action of the complaint.
Wherefore, the order appealed from is affirmed, with costs against the Appellant
Bengzon, Montemayor and Labrador, JJ.
, concurs in the result.
, concurring:chanrob1es virtual 1aw library
I concur in the affirmance of the order appealed from which dismissed the complaint, on the ground that the plea of usurpation by the defendant of the office to which the plaintiff was adjudged by the proper Electoral Tribunal to be entitled is not an allegation of fact. Usurpation is per se unlawful. A de facto officer enters upon the performance of the duties and functions of an office under a color of authority or title. A candidate proclaimed elected to an office by the agency set up by law to make the proclamation cannot be deemed a usurper. Cases cited by the dissenter which hold that a person entitled to an office as adjudged by the courts is also entitled to recover the fees collected and emoluments of and appertaining to the office from the ousted holder thereof, are either based on common law or upon express statutory provisions. In this jurisdiction the common law has never been applied and there is no statute which allows recovery of salaries and emoluments received by or paid to an officer who later on is adjudged not to be entitled to the office.
Nevertheless, if the defendant, directly or indirectly, had committed unlawful or tortious acts which led to and resulted in his proclamation as senator-elect, when in truth and in fact he was not so elected, he would be answerable for damages. In that event the salary, fees and emoluments received by or paid to him during his illegal incumbency would be a proper item of recoverable damage.
In the present case it is not pleaded that the defendant had committed such acts.
PABLO, M., disidente:chanrob1es virtual 1aw library
La mayoria admite que el demandado era un senador de facto y no de jure. Si esto es asi, entonces esta obligado a restituir al demandante todos los emolumentos que recibio como senador de facto.
No es necesario hacer un esfuerzo para llegar a tal conclusion si se tiene en cuenta que los emolumentos se dan al que es legalmente elegido, y no a otro. Un sentido ordinario de justicia obliga la restitucion al que haya sido privado de dichos emolumentos por el que los recibio sin derecho alguno.
Se arguye que en Filipinas no existe una ley que dispone la restitucion de los sueldos recibidos por el funcionario de facto al funcionario de jure, como en los estados de Indiana, Michigan y Nueva York, y que el derecho consuetudinario no rige en Filipinas. Precisamente, porque no existe tal ley, el Tribunal Supremo, inspirandose en altos principios de justicia, debe establecer como doctrina la de que el que haya ocupado ilegalmente un cargo debe restituir al funcionario de jure todos los sueldos que haya recibido. La regla universal que rigio desde que el hombre comenzo a tener nocion de la justicia es la siguiente: "dar a cada uno lo que es suyo." Si en la conciencia del hombre existe una nocion honda y fuertemente arraigada, esta es la de la justicia. Y fue la justicia la fuerza motriz que derroco imperios. Las revindicaciones sociales fueron inspiradas por sentimientos de justicia. Y las convulsiones sociales no son mas que signo sintomatico del hambre y sed de justicia.